In July 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Andrei Daniel Ilie after his sample tested positive for the prohibited substance 19-norandrosterone (nandrolone).

After notification the Athlete filed a statement in his defence and did not request the B sample analysis.

The ANAD Hearing Commission decides on 4 August 2009 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the decision.

In July 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Mihail Bogdan Sinescu after his sample tested positive for the prohibited substance cannabis.

After notification the Athlete filed a statement in his defence and did not request the B sample analysis.

Therefore the ANAD Hearing Commission decides on 4 August 2009 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the decision.

In May 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Ioan Vlad Cistelecan after his sample tested positive for the prohibited substance stanozolol.

Therefore the ANAD Hearing Commission decides on 4 August 2009 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the decision.

Related cases:
FIBA 2010 FIBA vs George Stouppas
February 22, 2010
FIBA 2010 FIBA vs Grigoris Pantouris
May 10, 2010

The International Basketball Federation (FIBA) has reported an anti-doping rule violation against the Player after his sample tested positive for the prohibited substances mesterolone and metenolone. The FIBA notified the Player and ordered a provisional suspension.

The Player filed a statement in his defence and was heard for the Panel. The Player admitted he has used a supplement, knew it contained a prohibited substance but did not know the supplement contained an anabolic steroid.
Because the Player gave false information on the Doping Control Form, the Panel finds he tampered with the Doping Control as a factor in determining Aggravating Circumstances.
Therefore the FIBA Disciplinary Panel decides a period of 2 years ineligibility starting from the day after the last official game in which the Player participated.

The Player provided further information to the authorities about the source of the prohibited substance and the persons implicated.
In a separate disciplinary procedure the FIBA Disciplinary Panel considers Player’s assistance to the effort to eliminate doping in sport. Therefore the Disciplinary Panel decides to reduce the previous 2 years sanction and to impose a 6 month period of ineligibility starting from the day after the last official game in which the Player participated.

Preservation of GHRH and GH-releasing peptide-2 efficacy in young men with experimentally induced hypogonadism / Johannes D. Veldhuis, Daniel M. Keenan, Joy N. Bailey, John M. Miles, Cyril Y. Bowers

• European Journal of Endocrinology 161 (2009) 2 (August), p. 293-300
• PMID: 19458139
• PMCID: PMC2772823
• DOI: 10.1530/EJE-09-0270

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Abstract

Background: Somatostatin (SS), GHRH, GH-releasing peptide (GHRP), and the sex-steroid milieu regulate GH secretion.

Objective: To test whether GHRH and GHRP remain effective secretagogs in the face of short-term hypogonadism.

Design: Prospective, randomized double-blind.

Methods: Healthy young men (n=24) received a GnRH agonist twice 3 weeks apart followed by placebo (n=13, Pl) or testosterone (n=11, testosterone) addback.

Subjects: were then given consecutive i.v. infusions of l-arginine (to restrain SS outflow) and a maximally effective dose of GHRH or GHRP-2 (to test corresponding secretagog pathways).

Results: GH secretion stimulated by l-arginine/GHRH and by l-arginine/GHRP-2 was unaffected by combined testosterone/estradiol (E(2)) depletion. The low testosterone/E(2) milieu decreased basal (nonpulsatile) GH secretion (P=0.038), without altering fasting pulsatile GH secretion or IGF1 or IGF-binding protein (IGFBP)-3 concentrations. IGFBP-1 (P<0.0001) and abdominal visceral fat (AVF, P=0.017) correlated negatively with fasting basal GH secretion. By contrast, IGF1 (P=0.0012) and IGFBP-3 (P=0.015) correlated positively with fasting pulsatile GH secretion. AVF (P=0.0024) was a negative determinant, and IGF1 a positive determinant (P=0.018), of GHRH-driven GH pulses. Responses to GHRP-2 were unrelated to any of these factors.

Conclusion: l-arginine/GHRP-2 appears to be an especially robust stimulus of GH secretion, since efficacy is unmodified by profound short-term hypogonadism, a range of AVF estimates, and a spectrum of IGF1, IGFBP-1, and IGFBP-3 concentrations. Whether robustness also applies to chronic hypogonadism is not known.

The International Antidoping System and Why It Works / Larry D. Bowers. – (Clinical Chemistry 55 (2009) 8 (August) : p. 1456-1461)

Purpose of this article is to provide an overview of how the current antidoping rules came into effect, to review some of the science underlying the antidoping rules, and to discuss a few of the cases decided by the Court of Arbitration in Sport (CAS).

Hoffman JR, Kraemer WJ, Bhasin S, Storer T, Ratamess NA, Haff GG, Willoughby DS, Rogol AD. Position stand on androgen and human growth hormone use. J Strength Cond Res. 2009 Aug;23(5 Suppl):S1-S59.

CAS 2008/A/1644 Adrian Mutu v/ Chelsea Football Club Limited

CAS 2008/A/1644 M. v. Chelsea Football Club Ltd.

Related cases:

• CAS 2005_A_876 Adrian Mutu vs Chelsea Football Club
  December 15, 2005
• CAS 2006_A_1192 Chelsea vs Adrian Mutu (anon)
  May 21, 2007
• Swiss Federal Court 4A_458_2009 Adrian Mutu vs Chelsea Football Club
  June 10, 2010
  
  

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• Football
• Breach of a contract of employment without just cause
• CAS Panels and the principle of ne ultra petita
• Previous CAS Awards passed between the parties and res iudicata
• Compensation on the basis of the unamortised acquisition costs
• Remoteness of the damage suffered by a Club
• Causation and mitigation of damages
• Effect of EC law to the application of the FIFA Regulations
  Specificity of sport

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1.) A CAS Panel is bound to observe the limits of the parties’ motions. Even though the Panel has full power to review the facts and the law of the case, the arbitral nature of CAS proceedings obliges the Panel to decide all claims submitted, but at the same time prevents the Panel from granting more than what the parties are actually asking for.

2.) The decisions passed between the parties through previous CAS Awards have a res iudicata status and the CAS Panel cannot review them, because they are finally settled.

3.) The award of compensation on the basis of the unamortised acquisition costs is not only explicitly provided in the FIFA Regulations, but also consistently upheld in the CAS jurisprudence. Such criterion is equally consistent with English law, which allows compensation for the costs incurred by the innocent party in reliance on the promised performance, but wasted because of the other party’s breach of contract.

4.) For a damage not to be too remote, the parties need to have contemplated the “head” of damage, and not the “extent” of that loss: it is a standard practice that transfer fees are paid. So long as the Player does not deny the fact that the Club paid the Former Club a substantial amount of money for his transfer, the fact that the Player was not party to the Transfer Contract and had therefore not determined the amount of the transfer fee, or the other expenses incurred by the Club in connection with the acquisition of the Player (on which compensation is calculated), is entirely irrelevant.

5.) The duty to mitigate damages only arises after the decision to terminate the contract is made. When the Club terminates the Employment Contract because of the Player’s breach without just cause, it still keeps the right to compensation for the costs incurred relying on the Player’s promised performance. The Club is not required to try to transfer (for a fee) the Player before exercising its right to terminate the Employment Contract, since such attempt could be construed as an implied affirmation of the Employment Contract, thereby depriving the Club of the option to terminate it.

6.) The effect of an award finding the FIFA Regulations to be contrary to EC law can only lead to the conclusion that damages cannot be assessed on the basis of such Regulations, and this leaves the question open for the determination of the damages on the basis of a national law only. In other words, should the FIFA dispute resolution system be found contrary to EC rules, the obligation of the Player to pay damages, as determined in the proper forum, would remain unaffected.

7.) The CAS Panel has to take into consideration the specific nature and needs of sport when assessing the circumstances of the dispute at stake, so to arrive to a solution which takes into account not only the interest of players and clubs, but, more broadly, those of the whole football community.

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In October 2004 the Player Adrian Mute tested positive for the prohibited substance cocaine and the Club terminated the contract with the Player with immediate effect.

On 4 November 2004, the FA’s Disciplinary Commission imposed a seven-month ban on the Player commencing on 25 October 2004. The FIFA Disciplinary Committee extended the sanction in order to obtain a worldwide effect by a decision dated 12 November 2004.

Between november 2004 and May 2008 a number of proceedings and appeals followed in the dispute between the Chelsea Football Club and Adrian Muti about the Player's breach of contract and Chelsea's claim for compensation filed by both parties with FIFA and CAS.

On 7 May 2008 the FIFA Dispute Resolution Chamber (DRC) decided that:

1.) The claim of Chelsea Football Club is partially accepted.

2.) The player, has to pay the amount of EUR 17,173,990 to Chelsea Football Club within 30 days of notification of the present decision.

3.) If this amount is not paid within the aforementioned time limit, a 5% interest rate per annum as of the expiry of the said time limit will apply and the matter will be submitted to the FIFA Disciplinary Committee for its consideration and decision.

4.) Any further request filed by Chelsea Football Club is rejected.

5.) Any counterclaim filed by the Player is rejected.

6.) (...)

Hereafter in September 20087 the Player appealed this DRC decision with CAS.

The CAS Panel finds that the appeal brought by the Player Adrian Muti is to be dismissed and the measure of damages, including interest thereupon (starting 30 days after the notification of the Decision), as awarded by the DRC, is to be confirmed. All other prayers for relief submitted by the parties are to be dismissed.

Therefore the Court of Arbitration for Sport decides on 31 July 2009:

1.) The appeal filed by the Player Adrian Muti against the decision issued on 7 May 2008 by the Dispute Resolution Chamber of the FIFA Players’ Status Committee is dismissed.

2.) The Player is ordered to pay to Chelsea Football Club Limited the amount of EUR 17,173,990, plus interest of 5% p.a. starting on 12 September 2008 until the effective date of payment.

3.) (…).

4.) (…).

5.) All other prayers for relief are dismissed.

CAS 2008/A/1557 Federazione Italiana Giuoco Calcio (FIGC), Daniele Mannini, Davide Possanzini & Comitato Olimpico Nazionale Italiano (CONI) v. World Anti-Doping Agency (WADA)

• Football
• Refusal or failure to submit to sample collection
• Revision of a CAS award upon the parties’ agreement
• Conditions of revision of a CAS award
• Admissibility of the revision of a CAS award and diligence of the claimant
• Athletes’ access to information regarding the anti-doping violation procedures
• Failure to submit to sample collection and different types of doping control

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1. The Swiss Private International Law Act (PILA) and the CAS Code do not provide for a review of international arbitral awards. However, if the parties agree to submit a request for revision to an arbitral tribunal directly, the latter is competent to undertake such revision under the rules which govern a revision of court decisions applied mutatis mutandis to a review of “international” arbitral awards.

2. When deciding on the revision of a first award, the CAS panel applies a dual test: first, the panel determines whether the revision is admissible and, second, whether the application of the new facts/evidence should lead to a modification of the initial award. As to the admissibility of the revision, the panel has to check whether the new facts/evidence existed at the time of the initial award, whether the claimants are able to prove that they were unable to produce the alleged new facts/new evidence in the previous proceedings and whether the new facts are “relevant” and “conclusive” in the sense that they could likely lead to a modification of the initial award on the merits.

3. For the admissibility of the revision of a CAS award, the claimants have the burden of proving that they were not negligent in omitting to present these facts in the previous proceedings. The test of diligence is fundamental and must be applied strictly because otherwise the doctrine of “res judicata” and basic principles of due process would be undermined. A revision cannot be a means for parties to make up for past mistakes and any negligence in their management of their burden of proof.

4. According to the established CAS case law, it is very important that athletes have access to relevant information and that the practices of the authorities that enforce the sports regulations be consistent and predictable. One of the corollaries of the diligence required of professional athletes is that athletes must be given a fair opportunity to fully inform and educate themselves, with user-friendly tools and materials, regarding the regulations and procedures. When regulations and procedures emanate from anti-doping organizations and are enforced via a pyramid of international and national sports federations, associations and anti-doping bodies, it must be ensured at each level that the rules are effectively implemented and that efficient processes are put in place to inform and educate the athletes.

5. Article 2.3 of WADC is generic in nature, in the sense that it simply defines the anti-doping violation consisting of a failure to submit to sample collection. It does not define the different types of doping controls that exist for sample collection or the related procedural requirements for the testing. Those details are found in underlying anti-doping rules.

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On 20 March 2008 the CONI Giudice di Ultima Istanza (GUI) decided to impose a sanction of 15 days on the football players Daniele Mannini and Davide Possanzin because of a delay in providing blood and urine samples on the occasion of a doping control on 1 December 2007.

Thereupon in May 2008 the World Anti-Doping Agency (WADA) appealed the GUI Decision with the Court of Arbitration for Sport (CAS). On 29 January 2009 the CAS Panel decided to impose a sanction of 1 year on the Athletes.

Hereafter in February 2009 the Italian Football Federation (FIGC) and the Athletes requested CAS for new arbitration and for a stay of execution of the rendered CAS Award of 29 January 2009. The Parties in this case reached a new arbitration agreement which authorizes the Panel to “re-open” the proceedings.

FIGC and the asserted that there is a series of new facts and/or new evidence on the basis of which the Panel should now reach a different conclusion, i.e. that the Athletes did not commit an anti-doping rule violation.

In relation to the reasoning in the first CAS Award and given the additional evidence, the Panel assessed whether the Athletes did or did not know precisely what their duties were with respect to the applicable doping-control procedure, and, if not, whether they are responsible for the lack of knowledge.

The Panel determines that through no fault or negligence of their own the Athletes themselves had no more than an “impressionistic” view of what their exact duties were in terms of reporting immediately to the control station and remaining in uninterrupted visual control of the chaperones.

The Panel establishes that the Athletes were far from believing that no exceptions were possible or from understanding the gravity of the sanction which would ensue in case of a breach.

As a result and contrary to its finding in its first CAS Award, the Panel now finds that when the Athletes stopped off in the changing room for somewhere between 10 and 25 minutes before proceeding to the control station they were not conscious of the fact and could not know that despite the circumstances (losing the game and being summoned by the coach and President) this delay and loss of visual control would according to the rules be deemed a failure or a refusal to submit to the doping control.

Accordingly, the Panel concludes that the Athletes cannot be deemed to have refused or failed to submit to sample collection.

Therefore the Court of Arbitration for Sport decides on 27 July 2009:

1.) The Request for Arbitration filed by the Federazione Italiana Giuoco Calcio on 12 February 2009 is upheld to the extent it requested a revision of the Award rendered by the Panel on 29 January 2009.

2.) The Panel’s Award of 29 January 2009 is retracted.

3.) The Appeal filed by the World Anti-Doping Agency on 16 May 2008 against the decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is dismissed.

4.) The decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is confirmed.

5.) All other motions or prayers for relief are dismissed.

(…).

CAS 2008/A/1744 Union Cycliste Internationale (UCI) v. Monika Schachl & Österreichischer Radsport Verband (ÖRV)

• Cycling
• Doping (failing to submit to sample collection)
• Interpretation of the anti-doping rules of an international federation
• Burden of proof of the athlete’s failure to submit to a sample collection
• Duty of reserve athletes to check in for sample collection
• Possibility to raise alternative defences (exceptional circumstances and compelling justification)
• Duty of an athlete to choose his coach with significant care
• No significant fault or negligence
• Disqualification of results
• Detachment of disqualification from ineligibility

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1. Where ambiguity or lacunae exist in the applicable anti-doping rules, or when interpreting those rules, it is open to consider the persuasive value of other sports laws and jurisprudence decided under other sports laws. Indeed, the broad implementation of the WADA Code by sports organizations around the world has given rise to a rich lex sportiva of statutes and jurisprudence that is frequently cited by sports arbitration panels.

2. The international federation (IF) bears the burden of proving that the athlete has failed to submit to an anti-doping sample collection. Unlike cases involving positive analytical tests, there is no provision in the anti-doping rules that explicitly shifts the burden of proof to the athlete after the showing of a basic set of minimum facts. The burden upon the IF encompasses more than just the showing of the fact of the missed test. The IF is also obligated to demonstrate that the doping control testing was conducted in a manner consistent with the requirements in the anti-doping rules of the IF. However, the IF’s burden does not include the obligation to prove that there was no compelling justification for failing to submit to the anti-doping test. A “compelling justification” is a defence that is for athletes to raise and substantiate if and after the IF has successfully discharged its burden of proof under its rules.

3. According to the UCI Rules “reserve Riders must check in for Sample collection within the prescribed time limit, even if they would not be required to submit to Sample collection”; in this respect, the UCI anti-doping rules are applicable to reserve riders exactly as for those who are eventually selected for testing.

4. The compelling justification defence is a complete defence. By contrast, the “No Significant Fault or Negligence” defence, permits only a reduction of a sanction for an anti-doping violation; it is not a complete defence. There is a clear and understandable hierarchy between the sanctions under the “compelling justification” defence and the “No Significant Fault or Negligence”. According to the CAS case law, there is no difficulty or objection to assessing the athlete’s defences with an appreciation for the hierarchy that exists between these two defences, despite the defences’ semantic similarities.

5. It is commonplace that ignorance on the part of an athlete’s coach of the proper law of his discipline is not a defence. Moreover, athletes cannot escape culpability for anti-doping rule violations by delegating all of their responsibilities to their coaches and their support personnel; such a result would eviscerate the fight against doping in sports. Athletes must therefore select their coaches or doctors with significant care, provide them with the necessary information, and supervise them to a certain extent, because errors by support personnel will be attributable to them in all but the most exceptional circumstances.

6. There is no significant fault or negligence if, by comparison to exceptional circumstances, the athlete’s fault or negligence that contributed to the anti-doping rule violation was not significant. Exceptional circumstances comprise rules regarding the post-competition testing which are difficult to read, confusing, and contain contradictions.

7. A rule providing that in a failure to submit a sample collection, in case the athlete establishes that he/she bears No Significant Fault or Negligence, the athlete’s results obtained in other competitions shall not be disqualified, applies in the context of an event encompassing several competitions. Its rationale is that results in other competitions within one and the same event are presumed not to have been affected by a failure to submit to sample collection with no significant fault or negligence in a competition within that event. This rationale would seem to apply a fortiori to competitions that have taken place outside the scope of an event in which an athlete has failed to submit to sample collection with no significant fault or negligence.

8. Ineligibility cannot be severed from disqualification in the absence of a clear provision in the applicable rules supporting such severance, for example, in cases in which the period of ineligibility begins before the date of the award and where the nature of the violation of the applicable rules is such that it can be presumed that the violation has not affected the results in other competitions in which the athlete has participated during the period of ineligibility prior to the award.

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In August 2008 the International Cycling Union (UCI) reported an anti-doping rule violation against the Austrian professional cyclist Monika Schachl for her failure to submit to sample collection.

The Anti-Doping Inspector and the chaperone reported in August 2008 that at the race in question they were unable to find the selected Athlete following her arrival in a very large group crossing the finish line. Thereupon at the material time the Athlete nor the team manager could be found because the team had already left the venue.

After the race the Athlete was contacted by telephone about the missed anti-doping control test. She immediately returned and arrived at the site 3 hours after the race.

However at the Doping Control Center the Athlete was too late to provide a sample. The female doctor had already left and the Doping Control Station had run out of kits for sample collection.

Considering the circumstances in this case the Legal Commission of the Austrian NADO, on behalf of the ÖRV, concluded on 18 September 2008 that the Athlete had not committed an anti-doping rule violation.

Hereafter in December 2008 the UCI appealed the ÖRV decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose an appropriate sanction on the Athlete.

The Athlete asserted that she had a compelling justification for failing to submit to doping control on a timely basis and requested for a reduced sanction. Alternatively she asserted that she failed to submit to doping control on a timely basis in spite of the fact that her fault or negligence was not significant.

The Panel considers that there are a number of exceptional circumstances in this case that contributed significantly to the occurrence of Schachl’s anti-doping rule violation. Following assessment to these exceptional circumstances, the Panel deems that Schachl’s fault or negligence that contributed to the anti-doping rule violation was not significant.

Therefore the Court of Arbitration for Sport decides on 27 July 2009:

1.) The award of the Rechtskommission of the Nationale Anti-Doping Agentur Austria GmbH of September 18, 2008, case number 2/2008 in the case of Ms. Monika Schachl, is set aside.

2.) Ms. Monika Schachl is declared ineligible for a period of one year, commencing on August 27, 2008, and concluding on August 26, 2009.

3.) Ms. Monika Schachl’s results from after August 27, 2008, until the date of this Order are disqualified. Ms. Schachl’s results from the second stage of the Sparkassen Giro on August 3, 2008, are also disqualified.

4.) (…).

5.) (…).

6.) To the extent specified in paragraphs 2, 3 and 4 of this Order, the appeal filed by the Union Cycliste Internationale on December 19, 2008, is upheld.

7.) All other requests for relief are rejected.